I have to hand it to the VA’s Office of General Counsel. With perfect aplomb, Mr. Mark M. McNabb, a mid-level supervisor/litigator for OGC, filed his notice of appearance and the Government’s response to my Writ.
Perhaps, by being mid-level, he’s not privy to what the Fed. Circus is handing down as precedence these days so much as at the Court. Law is so mind-numbing when it cuts into Twittertime. Perhaps that’s why he forgot overlooked the fact that Kyhn v. Shinseki 716 F. 3d 572 (2013) put a fork in the practice of continually shoving new evidence in under the CAVC tent like an intrusive camel’s nose.
OGC’s Faery Tale
Just in case, I sent him an email to read this so he can “freshen up” his next response. (no. just kidding, Bob) In a nutshell, VA tried this padding of the Record on Appeal back in 2012 to roll Arnold Kyhn on his appeal. The OGC showed up with some “affidavits” from several VA shills who testified how the mailing process works so that the Presumption of Regularity of the Mail could be preserved. One little problem. Congress put a fork in this way back in 1989 with the VJRA when they said the CAVC decision must be based solely on the evidence of record. You can see where it might seem a tad unfair that VA can sashay on in and add anything they want to “fix” it so everyone can get a handle on the facts more clearly. However probative and informative the affidavits were was a moot question. VA had plenty of time to introduce those at the BVA. The appeal to the Court must rise or fall on it’s own merits sans any post hoc PowerPoint™ Presentations by helpful VA employees. So you can imagine Counsel’s (mine) consternation when he spotted Veterans Service Center Manager (VSCM) Ayn-Marie Lofgren’s affidavit chock full of handy dandy explanations of shoes–and ships–and sealing-wax–of cabbages–and kings–and why the sea is boiling hot–and whether pigs have wings.
Imagine for yourselves the confluence of events and people about their normal occupations at the Seattle Regional Office (346) on any given day. Now imagine one Veteran-one out of say 300 or 3,000 or 30,000- with pending claims, appeals awaiting certification for the odd CUE claim to revise a decision made in 2008. Add in another appeal for an Independent Living Program greenhouse grant. Add in a pending Joint Motion for Partial Remand (JPMR) for grant of earlier effective date growing old, musty and unfinished. Now, imagine that all Big Mac’s Horses and all Big Mac’s men suddenly converged on one Veterans’s claim on the same day and at precisely the same moment-quite by chance, mind you. The odds are stupendous that all this could be done in concert- let alone without ten individual copies of an eleven-volume c file that has never been digitized. According to the DRO, there was one, and only one, on October 3rd, 2014. Nevertheless, this is what Ms. Lofgren’s affidavit purports to show. The wheels were in progress on this long before I filed my Writ. It’s merely that ol’ “confluence paradox” that needs little or no explaining. But, since I asked, Ayn-Marie will expound on it in Dick and Jane speak to assuage my fears and show me my $50 filing fee was a poor investment.
Could it be believed, the stars aligned so perfectly on February 17th that one would tend to search for Sagittarius on the cusp of Aries. I should have invested in Tesla that day. Perhaps renewed my wedding vows. Days like this just don’t happen unless… unless maybe Miz Lofgren was funning us. There’s one little problem we detected. Columbo would have spotted this with one eye. There were fingerprints on the bullet inside the gun. If you want this to look convincing to a CAVC Judge, you simply have to do a better job of arranging the crime scene.
The first problem is that our observant VSCM was only recently assigned to the Seattle RO in April of 2014 so anything that transpired before her tenure there cannot be attested to under oath as she did on items II – V, XIV, XV and XVIII. Being generous, I would say her credibility has been severely compromised.
Item XI states that the rating decision was adjudicated February 19th but my Ebenefits shows it closed on the 17th.
What’s truly amazing about this is the pace of progress. I’ve helped hundreds to learn the ins and outs of eBennies. Never have I seen a decision published on the site in less than three days following the promulgation of the decision-let alone before being signed around for the requisite three signatures to release more than $25,000.00. Moving on…
Item XII states a SSOC was issued February 17th, to help Counsel better understand the denial of a higher rating for Porphyria that would not be adjudicated until two days hence (February 19th). This is what we call the DeLorean Conundrum. It’s Back to the Future litigation.
XVIII clearly states I have a claim pending for Cryo/Fibro filed October 2, 2012 yet the above screen shot shows a) it is no longer pending and b) Ms. Lofgren could not be personally cognizant of this event two years before her arrival. Judge Judy calls this Hearsay. In Courtspeak, that’s inadmissible.
XX scares me the most. The Veterans Service Center Manager of my Regional Office has just thrown down the gauntlet and announced she will convert my c-file into an electronic format “when the file is eligible for scanning”. How would one view, let alone review, the file to plan a defense for the future appeal(s) without it? Doesn’t the term “due process” reverberate around in the skulls of any of these folks?
Now for the icing. If Ms. Lofgren can be believed, it just so happens that the Tacoma QTC was contacted to set up a compensation and pension examination that very same auspicious February 17th I was remarking on above. The obvious fingerprint on the bullet ensconced in the gun now has a name. If the claim is still waiting to be adjudicated as described in XVIII, how can it be that it is an appeal? Item XVIII also states this claim was filed on October 2, 2012 yet the DRO transmitted it to QTC as an appeal with an effective date of August 12, 2012. This is like the immortal Traffic Song of the sixties You can all join in: “Make your own date up if you want to/ Any old date that you think will do”.
I have asked Lawbob Writpants to file a motion to strike this flawed document from the record. If this is the best answer Mr. McNabb can muster, VA should retire from the field of battle and be declared hors d’combat. Unfortunately, there is a high probability that Judge Davis would be generous to our Mr. McNabb because he is normally very courteous to these VA folks. I feel every motion we can file that is appropriate -and salient-should be. I’ve always been a big fan of enfilading fire. Why waste bullets? Let them run into the bullets. This becomes the template for many who will follow in my steps. Gordie and his mother Jean Erspamer are looking over my shoulder. Gene Groves is also front and center in an effort to help fine tune it. We want the compendium of the evidence to be an egregious insult to the intelligence of the Court.
As for Mr. McNabb’s observation that twenty two years of sitting on the Group W bench patiently waiting for justice hardly amounts to a refusal to act, I would point out two things. He cites to Jean Erspamer and Mr. Costanza as being the bright line rule. Jean waited 10 years for her decision. Mr. Costanza had no standing as he merely had eleven months on the bench. Neither approaches my record twenty two years in limbo nor the calluses on my derrière. Nevertheless, McNabb says the wait does not represent the “extraordinary circumstances” that would precipitate a grant of the Writ. Perchance a delay of several generations of Grahams, to say, my unborn grandson’s before remuneration delay would be considered “extraordinary” is the metric Mr. McNabb feels is appropriate?
As for this insane argument over 100% versus 60%? Idiot’s delight. You can see the hubris well up in their breasts as they steadfastly refuse to entertain the 100% semantic tar baby named “Totally disabled”. Item VII might have been written by Judge Hindin himself. “Mr. Graham expressed his objective was to obtain an increased evaluation of 100% for PCT effective March 31, 1994.” Good Heavens! The greedy Vet revealed his cards? Quick. Write a stinging rebuke and tell him it won’t be arriving until the Second Coming of Christ. And they did. Three days later (see VIII).
One thing is for sure. The OGC dallied until the very last day as we suspected they would to accomplish as much as possible. They filed at 1838 Local on the new, happy NW Left Coast which was a mere two hours and twenty eight minutes before the carriage and four-in-hand reverted into a pumpkin and mice. Bravo. Mr. McNabb. A grateful Veteran salutes you for your yeoman service and perseverance to try to get it right lo these one score and two years. Pardon me if I take on a Missouri-like scepticism and ask you to just show me.
Here’s Bob’s latest Opera Dei.
Petitioner’s Response to Respondent’s Faery Tale
Hey. Ne problemo, right? All’s well that appeals well.
We are now at Launch plus fifty seven (57) days. I’ m sure I mentioned back in January this would be VA Ratings on steroids at 78 RPM. Stay tuned. This is almost over- just in time for the NOVA Conference in April. My, what another odd coincidence.
This is a series in Birth of a Writ. To read the next installment please click here
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